Johnson v. Missouri Ins. Co.
| Decision Date | 08 March 1932 |
| Docket Number | 21702 |
| Citation | 46 S.W.2d 959 |
| Parties | JOHNSON v. MISSOURI INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; O’Neill Ryan, Judge.
“ Not to be officially published.”
Action by Walter Johnson against the Missouri Insurance Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Jones Hocker, Sullivan & Angert and Warren F. Drescher, Jr., all of St. Louis, for appellant.
John P. Griffin, of St. Louis, for respondent.
This is an action upon a policy of insurance issued by defendant, Missouri Insurance Company, on November 28, 1927, and insuring the life of Willie Johnson for the sum of $250. The beneficiary named in the policy was Ethel Johnson, a sister of the insured; and plaintiff, Walter Johnson, who is also a brother, sues as assignee of all the former’s right, title, and interest in and to the policy.
The case originated in a justice’s court in the city of St. Louis, wherein plaintiff prevailed on a trial to the justice alone. Thereupon an appeal was taken by defendant to the circuit court of the city of St. Louis, where plaintiff again prevailed, a verdict being returned by the jury in his favor, and against defendant, in the aggregate amount of $282.13, which included the principal sum due on the policy, together with interest thereon. Judgment was rendered accordingly; and, following the overruling of its motion for a new trial, defendant has duly appealed the case to this court.
Though full and complete pleadings were filed by both parties in the justice’s court, an extended reference to their contents will be unnecessary. Suffice it to say that defendant admitted the issuance of the policy upon the terms heretofore mentioned, the payment of premiums thereon, the death of the insured on January 21, 1928, and the making of due proof of death, but resisted payment on the theory that death came from a cause and within a time that rendered the policy void, and discharged the company from all liability save for the refund of the premiums paid thereon.
The following is the provision of the policy upon which defendant relies: "The applicant must be alive and in sound health and free from any injury when this policy is delivered in person, and no liability is assumed by the Company for any accident occurring or illness contracted prior to the date of the actual delivery of this policy, and if disability or death of the insured results from any forms of Tuberculosis, Chronic Bronchitis, Cancer, Paralysis, Rheumatism, or any disease of the Heart, Liver, or Kidneys within one year from date of this policy, the policy shall become void, and the Company will be liable only for the refund of the premiums paid hereon."
For his case in chief, plaintiff introduced the policy of insurance, and rested; and defendant concedes in its brief that he thereby made a prima facie case, and that the burden was thereupon cast upon it to show that it was nevertheless not liable for the payment of the death benefit, in view of the above provision of the policy.
Defendant’s evidence tended to show that the insured entered City Hospital No. 2, of the city of St. Louis, on January 15, 1928, and that he died therein on January 21st of tubercular meningitis. Such cause of death appeared both from the hospital records and from the certificate of death which was prepared and certified to by Dr. L. B. Howell, a physician on the staff of the hospital.
It is thus to be observed that defendant was striving to bring the case within the above exception to the policy by showing that the death of the insured resulted from a form of tuberculosis; and whether it did so result was the only matter at issue between the parties, since it was admitted that the insured died within one year from the date of the issuance of the policy, and that all premiums which had been paid thereon had been refunded by the company.
For its expert witness, defendant used Dr. Frank E. Murphy, whose testimony was that tubercular meningitis is an inflammation of the covering of the brain, caused by tubercular bacilli which reach the brain through the blood stream, and that the disease is a form of tuberculosis. However, on cross-examination, the doctor admitted that meningitis as such is a very serious disease which brings about death in a very short period of time; that tuberculosis as a definite disease usually commits its ravages by a much slower process; and that, if it should be assumed that the insured was a strong, able-bodied man, who worked every day, and was ill for only eight or ten days, he would say that the cause of his death was meningitis.
In rebuttal, plaintiff put Dr. Howell upon the stand, who, it will be recalled, had prepared the certificate of death in which the cause of death was given as tubercular meningitis. The doctor testified that following the death of the insured he had made an examination to determine the cause thereof and that at that time he reached the conclusion that the cause was tubercular meningitis. However, he stated further that he had only guessed at the diagnosis; that to have been definite about the matter, it would have been necessary for him to have tested the spinal fluid; that no such test was made; that there were no other symptoms of tuberculosis to be observed about the body; and that, having meanwhile read standard books on the disease, he had finally reached...
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